Embed Size (px)
Citation preview
VLADIMIR ORTAKOVSKIVLADIMIR ORTAKOVSKI
MIGRANTS, REFUGEES MIGRANTS, REFUGEES AND HUMAN RIGHTS AND HUMAN RIGHTS
1. 1. Migrants and RefugeesMigrants and RefugeesThere is a huge number of irregular entrances of immigrants There is a huge number of irregular entrances of immigrants
and refugees who reach the coasts of South European and refugees who reach the coasts of South European Member State to enter in EU, by the Mediterranean Sea. Member State to enter in EU, by the Mediterranean Sea. They try to escape armed conflicts and violence in Syria, They try to escape armed conflicts and violence in Syria, Iraq, Afghanistan, Iraq, Afghanistan, Eritrea and SomaliaEritrea and Somalia, and entered Italy, , and entered Italy, or Greece (and then, through Macedonia and Serbia, go to or Greece (and then, through Macedonia and Serbia, go to Hungary, or Croatia, and after that, to Austria and Germa-Hungary, or Croatia, and after that, to Austria and Germa-ny). The most illegal border crossings are happening right ny). The most illegal border crossings are happening right now, in 2015, more than in 2012, even more than during now, in 2015, more than in 2012, even more than during the 2011 Arab Spring. The irregular immigrants and the 2011 Arab Spring. The irregular immigrants and refugees arrive by boats guided by traffickers and a lot of refugees arrive by boats guided by traffickers and a lot of them lost their lives at sea. them lost their lives at sea.
1. 1. Migrants and RefugeesMigrants and RefugeesSince the beginning of Since the beginning of 20152015, approximately 120,000 , approximately 120,000 migrants migrants
and refugeesand refugees have arrived in Serbia. have arrived in Serbia. TTheheirir number number is is with with an average of an average of more than more than 3,500 daily arrivals. 3,500 daily arrivals. Actually, they Actually, they are in transit from Greece, through Macedonia and Serbia, are in transit from Greece, through Macedonia and Serbia, to Hungary. to Hungary.
On 20 August, the government of the Republic of Macedonia On 20 August, the government of the Republic of Macedonia declared a state of emergency due to the increased migradeclared a state of emergency due to the increased migra--tion flows into its southern border with Greece. tion flows into its southern border with Greece. BBetween 19 etween 19 June and 7 September 2015, a total of 64,522 migrants June and 7 September 2015, a total of 64,522 migrants were registeredwere registered. T. The current average arrival rate at the he current average arrival rate at the southern border is estimated at southern border is estimated at more than 3,5more than 3,500 per day 00 per day and theand the Macedonian Macedonian government government iis faced with difficulties in s faced with difficulties in addressing the basic needs of those arriving.addressing the basic needs of those arriving.
1. 1. Migrants and RefugeesMigrants and RefugeesThe situation is better The situation is better since 2 Septembersince 2 September, with establishing, with establishing
transit site transit site andand a new registration centre in Gevg a new registration centre in Gevgeelija. Since lija. Since the opening, approximately 4,000 migrants have been the opening, approximately 4,000 migrants have been registered on a daily basis. The government’s priority is to registered on a daily basis. The government’s priority is to enhance the registration process, which include security enhance the registration process, which include security measures such as fingerprinting. measures such as fingerprinting.
1. 1. Migrants and RefugeesMigrants and RefugeesMigrantsMigrants choose to move not because of a direct threat of choose to move not because of a direct threat of
persecution or death, but mainly to improve their lives by persecution or death, but mainly to improve their lives by finding work, or in some cases for education, family finding work, or in some cases for education, family reunion, or other reasons. Unlike refugees who cannot reunion, or other reasons. Unlike refugees who cannot safely return home, migrants face no such impediment to safely return home, migrants face no such impediment to return. If they choose to return home, they will continue to return. If they choose to return home, they will continue to receive the protection of their government. receive the protection of their government.
RefugeesRefugees are persons fleeing armed conflict or persecution. are persons fleeing armed conflict or persecution. Their situation is often so intolerable that they cross Their situation is often so intolerable that they cross national borders to seek safety in national borders to seek safety in otherother countries, and thus countries, and thus become internationally recognized as "refugees" with become internationally recognized as "refugees" with access to assistance from States, UNHCR, and other access to assistance from States, UNHCR, and other organizations. organizations. IIt is too dangerous for them to return home.t is too dangerous for them to return home.
1. 1. Migrants and RefugeesMigrants and RefugeesMigrantMigrant is a wide-ranging term that covers people who move is a wide-ranging term that covers people who move
to a foreign country for a certain length of time - not to be to a foreign country for a certain length of time - not to be confused with short-term visitors such as tourists and confused with short-term visitors such as tourists and traders. People migrate for a variety of reasons.traders. People migrate for a variety of reasons.
MigrantsMigrants are fundamentally different from refugees and, thus, are fundamentally different from refugees and, thus, are treated very differently under international law.are treated very differently under international law. MigrantsMigrants,, especially economic migrants, choose to move in especially economic migrants, choose to move in order to improve their lives. Refugees are forced to flee to order to improve their lives. Refugees are forced to flee to save their lives or preserve their freedom.save their lives or preserve their freedom.
Migrants and refugeesMigrants and refugees increasingly make use of the same increasingly make use of the same routes and means of transport to get to an overseas destiroutes and means of transport to get to an overseas desti--nation. nation.
1. 1. Migrants and RefugeesMigrants and RefugeesRRefugees and migrants around the world risk their lives every efugees and migrants around the world risk their lives every
day in desperate attempts to find safety or a better life.day in desperate attempts to find safety or a better life. Although refugees and migrants often use the same routes Although refugees and migrants often use the same routes and modes of transportand modes of transport,, they have different protection they have different protection needs.needs.
Factors that have contributed to the increase in the scale of Factors that have contributed to the increase in the scale of international migration include globalization and growing international migration include globalization and growing disparities in living conditions, both within and between disparities in living conditions, both within and between countries. countries. MMany are seeking employment or educational any are seeking employment or educational opportunities, others want to reunite with family members opportunities, others want to reunite with family members and still more are fleeing persecution, conflict or violence in and still more are fleeing persecution, conflict or violence in their countries.their countries.
1. 1. Migrants and RefugeesMigrants and RefugeesWhile refugees and asylum seekers account for only a small While refugees and asylum seekers account for only a small
proportion of the global movement of people, they proportion of the global movement of people, they frequently travel alongside migrants. Many of these frequently travel alongside migrants. Many of these movements are irregular, in the sense that they often take movements are irregular, in the sense that they often take place without documentation, use unauthorized border place without documentation, use unauthorized border crossing points or involve smugglers.crossing points or involve smugglers.
The people who move in this manner place their lives at risk. The people who move in this manner place their lives at risk. They are often obliged to travel in inhumane conditions and They are often obliged to travel in inhumane conditions and may be exposed to exploitation and abuse. States regard may be exposed to exploitation and abuse. States regard such movements as a threat to their sovereignty and such movements as a threat to their sovereignty and security. And yet this may be, in some cases, the only security. And yet this may be, in some cases, the only escape route open to those fleeing war or persecution.escape route open to those fleeing war or persecution.
2. Definition of Refugees2. Definition of RefugeesA refugee “is a person fleeing life-threatening conditions.”A refugee “is a person fleeing life-threatening conditions.”
A refugee in essence is “a person who has crossed an A refugee in essence is “a person who has crossed an international frontier because of well-founded fear of international frontier because of well-founded fear of persecution.” persecution.”
The 1951 Convention relating to the Status of Refugees (UN The 1951 Convention relating to the Status of Refugees (UN Convention) defines a refugee as a person who, “owing to Convention) defines a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in particular social race, religion, nationality, membership in particular social group or political opinion, is outside the country of his [or group or political opinion, is outside the country of his [or hers] nationality and is unable or, owing to such a fear, is hers] nationality and is unable or, owing to such a fear, is unwilling to avail himself [or herself] of the protection of that unwilling to avail himself [or herself] of the protection of that country.” (United Nations, 1951, Convention, art. 1A(2))country.” (United Nations, 1951, Convention, art. 1A(2))
2. Definition of Refugees2. Definition of RefugeesThis definition was made in the post-Second World War This definition was made in the post-Second World War
period in order to deal with all the people who had been period in order to deal with all the people who had been driven from their homes during the war. After the nature of driven from their homes during the war. After the nature of refugees shifted from an East to West movement into a refugees shifted from an East to West movement into a South to North movement an addition was made in the South to North movement an addition was made in the form of the 1967 Protocol Relating to the Status of form of the 1967 Protocol Relating to the Status of Refugees, waiving the temporariness and geographical Refugees, waiving the temporariness and geographical limitation of the Conventions definition. This addition was limitation of the Conventions definition. This addition was inspired by the definition made by the Organization of inspired by the definition made by the Organization of African Union in 1969, which also opens for other causes African Union in 1969, which also opens for other causes than persecution to be the cause of refugee status.than persecution to be the cause of refugee status.
33. . Basic Rights of RefugeesBasic Rights of RefugeesTThe 1951 Convention defines who is a refugee and outlines he 1951 Convention defines who is a refugee and outlines
the basic rights which States should afford to refugees. The the basic rights which States should afford to refugees. The protection of refugees includeprotection of refugees includess safety from being returned safety from being returned to the dangers they have fled; access to asylum to the dangers they have fled; access to asylum procedures that are fair and efficient; and measures to procedures that are fair and efficient; and measures to ensure that their basic human rights are respected to allow ensure that their basic human rights are respected to allow them to live in dignity and safety while helping them to find them to live in dignity and safety while helping them to find a longer-term solution. States bear the primary a longer-term solution. States bear the primary responsibility for this protection.responsibility for this protection.
Most of the world’s refugees often move to a neighboring Most of the world’s refugees often move to a neighboring country in order to wait it for a normalization of the situation country in order to wait it for a normalization of the situation in their country of origin and to return in their home area. in their country of origin and to return in their home area.
44. . Refugees, migrants, internally displaced Refugees, migrants, internally displaced personspersonsIn recent time the reason for leaving the country of origin In recent time the reason for leaving the country of origin
varies. Refugees can be seen as a subcategory under varies. Refugees can be seen as a subcategory under forced migration. forced migration. Forced migrantsForced migrants also contains also contains asylum asylum seekersseekers, people who have left their country in search of , people who have left their country in search of protection, but have not received refugee status yet. protection, but have not received refugee status yet. Internally displaced personsInternally displaced persons have been forced to leave have been forced to leave their home because of life threatening conditions, but their home because of life threatening conditions, but haven’t crossed an international border. haven’t crossed an international border.
In the twentieth-first century there are more refugees than In the twentieth-first century there are more refugees than ever, almost 55 million people are of concern to the ever, almost 55 million people are of concern to the UNHCR. UNHCR.
5. Countries dealing with migrants and refugees 5. Countries dealing with migrants and refugees
For indFor indiividual governments, distinctionvidual governments, distinction between migrants and between migrants and refugeesrefugees is important. is important.
Countries deal with migrantsCountries deal with migrants under their own immigration under their own immigration laws and processes. laws and processes.
Countries deal with refugeesCountries deal with refugees through norms of refugee through norms of refugee protection and asylum that are defined in bothprotection and asylum that are defined in both international international law andlaw and national legislation. national legislation. CConflating refugees and onflating refugees and migrants can have serious consequences for the lives and migrants can have serious consequences for the lives and safety of refugees. safety of refugees. AAll human beingsll human beings should be treated should be treated with with respect and dignity. respect and dignity. It should beIt should be ensure ensuredd that the human that the human rights of migrants are respected. At the same time, an rights of migrants are respected. At the same time, an appropriate legal response for refugeesappropriate legal response for refugees should be provided should be provided..
6. Syria and Refugees6. Syria and Refugees For the last few years, the Syrian Arabic Republic (Syria) has For the last few years, the Syrian Arabic Republic (Syria) has
produced more and more refugees. This is due to long civil produced more and more refugees. This is due to long civil war and recently the ISIS movement, which is trying to war and recently the ISIS movement, which is trying to create a caliphate ruled by sharia (Islamic law).create a caliphate ruled by sharia (Islamic law).
Syria itself receive almost 150 thousand refugees, some of Syria itself receive almost 150 thousand refugees, some of them might have come to join the caliphate. them might have come to join the caliphate.
Syria has almost 4 million people on the run to other countri-Syria has almost 4 million people on the run to other countri-es from the civil war and the famine and poverty that this es from the civil war and the famine and poverty that this has brought with it. More than 7.6 million people uprooted has brought with it. More than 7.6 million people uprooted by the chaos and war in Syria are internally displaced by the chaos and war in Syria are internally displaced persons, inside the country trying to find a way to survive.persons, inside the country trying to find a way to survive.
6. Syria and Refugees6. Syria and Refugees An increasing number of people fleeing the Syrian conflict are An increasing number of people fleeing the Syrian conflict are
seeking safety in countries beyond the immediate region. seeking safety in countries beyond the immediate region. As of November 2014, some 3.2 million Syrian refugees As of November 2014, some 3.2 million Syrian refugees have been registered in Syria’s neighbouring countries.The have been registered in Syria’s neighbouring countries.The number of Syrians taking to boats in the Mediterranean, number of Syrians taking to boats in the Mediterranean, mostly departing from Libya, but also Egypt and Turkey, mostly departing from Libya, but also Egypt and Turkey, has continued to increase. At the end of 2011, a few has continued to increase. At the end of 2011, a few months after the outburst of violence in Syria, an estimated months after the outburst of violence in Syria, an estimated 320 Syrians arrived by sea to Italy. Syrian arrivals 320 Syrians arrived by sea to Italy. Syrian arrivals to Italy to Italy numberednumbered 580 at the end of 2012 580 at the end of 2012;; 11,307 a11,307 at the end of t the end of 20132013.. This trend continued in 2014, as of October, 36,351 This trend continued in 2014, as of October, 36,351 Syrians arrived in Italy, representing nearly a seven-fold Syrians arrived in Italy, representing nearly a seven-fold increase over the same period increase over the same period previousprevious year. year.
6. Syria and Refugees6. Syria and Refugees In addition, around 23,200 Syrians arrived by sea in Greece. In addition, around 23,200 Syrians arrived by sea in Greece.
This makes Syrians the number one population arriving by This makes Syrians the number one population arriving by sea in the Mediterranean. Many Syrians are coming with sea in the Mediterranean. Many Syrians are coming with entire families, including small children, elderly parents and entire families, including small children, elderly parents and grandparents. Family groups represent a significant part of grandparents. Family groups represent a significant part of Syrian movements towards Europe. As of the end of Syrian movements towards Europe. As of the end of October 2014, 9,770 Syrian children have arrived to the October 2014, 9,770 Syrian children have arrived to the coast of Italy up from 3,600 in 2013. Children, in particular coast of Italy up from 3,600 in 2013. Children, in particular small children, are more at risk small children, are more at risk bbecause they may not ecause they may not know how to swim, and, if traveling alone, may not have know how to swim, and, if traveling alone, may not have someone looking out for them. someone looking out for them.
7. EU response to refugee crisis 7. EU response to refugee crisis European Commission President Jean-Claude Juncker has European Commission President Jean-Claude Juncker has
announced plans for response to Europe's migrant crisis. announced plans for response to Europe's migrant crisis.
He admitted that the European Union was "not in a good He admitted that the European Union was "not in a good situation... There is a lack of Europe in this union, and a situation... There is a lack of Europe in this union, and a lack of union in this union". He pointed out that the crisis lack of union in this union". He pointed out that the crisis was "a matter of humanity and human dignity".was "a matter of humanity and human dignity".
Some of Some of Mr Juncker's proposalsMr Juncker's proposals::- EU member states to accept their share of an additional EU member states to accept their share of an additional
120,000 refugees, building upon proposed quotas to 120,000 refugees, building upon proposed quotas to relocate 40,000 refugees which were set out in May; relocate 40,000 refugees which were set out in May;
- A permanent relocation system to "deal with crisis A permanent relocation system to "deal with crisis situations more swiftly in the future“; situations more swiftly in the future“;
7. EU response to refugee crisis 7. EU response to refugee crisis - Commission to propose list of "safe countries" to which Commission to propose list of "safe countries" to which
migrants would generally have to return; migrants would generally have to return; - Efforts to strengthen the EU's common asylum system; Efforts to strengthen the EU's common asylum system; - A review of the so-called Dublin system, which states that A review of the so-called Dublin system, which states that
people must claim asylum in the state where they first people must claim asylum in the state where they first enter the EU; enter the EU;
- Better management of external borders and better legal Better management of external borders and better legal channels for migration; channels for migration;
- "It's 160,000 refugees in total that Europeans have to take "It's 160,000 refugees in total that Europeans have to take into their arms and I really hope that this time everyone will into their arms and I really hope that this time everyone will be on board - no rhetoric, action is what is needed".be on board - no rhetoric, action is what is needed".
8. EU legal response to irregular migration 8. EU legal response to irregular migration
Over the last decade or so the EU has launched a series of Over the last decade or so the EU has launched a series of legal provisions and policy documents containing the legal provisions and policy documents containing the guidelines, objectives and legal instruments with which to guidelines, objectives and legal instruments with which to operate in the fight against irregular immigration from third operate in the fight against irregular immigration from third countries. The key aim seems to be to combat the aiding countries. The key aim seems to be to combat the aiding and abetting and exploitation of irregular immigration by and abetting and exploitation of irregular immigration by criminal gangs through the trafficking of human beings and criminal gangs through the trafficking of human beings and the use of irregular migrants as a cheap labour force.the use of irregular migrants as a cheap labour force.
Some efforts have also been made to address the issues Some efforts have also been made to address the issues which act as ‘push factors’ in the countries of origin so as which act as ‘push factors’ in the countries of origin so as to reduce irregular migration flows and to strengthen border to reduce irregular migration flows and to strengthen border controls and migration management processes. controls and migration management processes.
8. EU legal response to irregular migration8. EU legal response to irregular migration
EU policy in the field of external borders of the European EU policy in the field of external borders of the European Union is focused on supporting Member States in the Union is focused on supporting Member States in the management of border controls and ensuring a high and management of border controls and ensuring a high and uniform level of control on persons and surveillance, as a uniform level of control on persons and surveillance, as a prerequisite for creating a space of freedom, security and prerequisite for creating a space of freedom, security and justice. To help achieve that aim it created the European justice. To help achieve that aim it created the European Agency for the Management of Operational Cooperation at Agency for the Management of Operational Cooperation at the External Borders of the Member States of the the External Borders of the Member States of the European Union “FRONTEX” (Regulation 2007/2004). European Union “FRONTEX” (Regulation 2007/2004).
8. EU legal response to irregular migration8. EU legal response to irregular migration
In legal terms, the field of border control is governed by the In legal terms, the field of border control is governed by the Schengen Borders Code (Regulation 562/2006), which defines Schengen Borders Code (Regulation 562/2006), which defines rules for crossing the external borders and internal border rules for crossing the external borders and internal border controls. It applies to any person crossing any borders of a controls. It applies to any person crossing any borders of a Member State. Member State.
In 2009 the EU created the Visa Code (Regulation 810/2009), In 2009 the EU created the Visa Code (Regulation 810/2009), which regulates the conditions and procedures for issuing visas which regulates the conditions and procedures for issuing visas for short stays and transit through Member States and for short stays and transit through Member States and associated States by applying the Schengen acquis. It requires associated States by applying the Schengen acquis. It requires nationals of third countries to be in possession of visas when nationals of third countries to be in possession of visas when crossing the external borders of the EU and for some countries crossing the external borders of the EU and for some countries to be in possession of an airport transit visa for passage through to be in possession of an airport transit visa for passage through the international transit areas of airports of Member States. the international transit areas of airports of Member States.
8. EU legal response to irregular migration8. EU legal response to irregular migration
The European Parliament recently adopted the Regulation The European Parliament recently adopted the Regulation establishing rules of surveillance in FRONTEX coordinated establishing rules of surveillance in FRONTEX coordinated joint operations. A further development to consider is the joint operations. A further development to consider is the European Border Surveillance System “EUROSUR” European Border Surveillance System “EUROSUR” established in 2011 and becoming operational on 2 established in 2011 and becoming operational on 2 December 2013. It aims to reduce the number of irregular December 2013. It aims to reduce the number of irregular migrants entering the EU undetected, help member states migrants entering the EU undetected, help member states to react faster to incidents regarding undocumented to react faster to incidents regarding undocumented migrants and crossborder crime. Its main pillars are the migrants and crossborder crime. Its main pillars are the ‘national coordination centres’, in which all authorities ‘national coordination centres’, in which all authorities responsible for border surveillance are required to responsible for border surveillance are required to coordinate their activities. It will be operational in a total of coordinate their activities. It will be operational in a total of 30 countries. 30 countries.
9. Human Trafficking 9. Human Trafficking Another important area to consider in relation to irregular Another important area to consider in relation to irregular
immigration is the EU’s fight against human trafficking. The immigration is the EU’s fight against human trafficking. The Council action plan on trafficking in human beings Council action plan on trafficking in human beings (European Council, 2002) and the Commission Policy Plan (European Council, 2002) and the Commission Policy Plan on legal immigration (European Commission, 2005) are on legal immigration (European Commission, 2005) are examples of developing coordination and cooperation examples of developing coordination and cooperation mechanisms and developing guidelines for data collection mechanisms and developing guidelines for data collection in order to better understand this area. Through its in order to better understand this area. Through its development policy the Commission stated that they have development policy the Commission stated that they have to continue funding measures addressing the factors that to continue funding measures addressing the factors that make some people vulnerable to trafficking, such as make some people vulnerable to trafficking, such as poverty, discrimination and lack of access to basic and poverty, discrimination and lack of access to basic and higher education. higher education.
9. Human Trafficking 9. Human Trafficking Directive 2004/81/EC supplements a range of European level Directive 2004/81/EC supplements a range of European level
measures designed to combat trafficking in human beings, measures designed to combat trafficking in human beings, including Council Framework Decision 2002/629/JHA (now including Council Framework Decision 2002/629/JHA (now replaced by Directive 2011/36) on combating trafficking in replaced by Directive 2011/36) on combating trafficking in human beings and Council Directive 2002/90/EC defining human beings and Council Directive 2002/90/EC defining of unauthorized entry, transit and residence. The Directive of unauthorized entry, transit and residence. The Directive defines the conditions for granting residence permits of defines the conditions for granting residence permits of limited duration to non European Union nationals who are limited duration to non European Union nationals who are victims of human trafficking or the subject of an action victims of human trafficking or the subject of an action relating to the smuggling of people and who cooperate in relating to the smuggling of people and who cooperate in the fight against these crimes. The permit may be granted the fight against these crimes. The permit may be granted to non-EU nationals even if they have irregularly entered to non-EU nationals even if they have irregularly entered the territory of an EU country. the territory of an EU country.
9. Human Trafficking 9. Human Trafficking EU countries should provide victims with better access to EU countries should provide victims with better access to
information on the opportunities provided by the Directive. information on the opportunities provided by the Directive. Furthermore, they should fully comply with the provisions Furthermore, they should fully comply with the provisions concerning treatment of victims during the reflection period. concerning treatment of victims during the reflection period.
The law relating to trafficking is based around criminalization The law relating to trafficking is based around criminalization of trafficking but does not take enough care to ensure that of trafficking but does not take enough care to ensure that it does not criminalize those being trafficked. it does not criminalize those being trafficked.
The current approach pays insufficient attention to the victims’ The current approach pays insufficient attention to the victims’ human rights and need for support and instead puts them human rights and need for support and instead puts them at risk of being re-branded as criminals and illegal even at risk of being re-branded as criminals and illegal even after they have managed to achieve regular status. after they have managed to achieve regular status.
10. EU Legal Framework 10. EU Legal Framework The EU legal framework has been criticized on many levels. The EU legal framework has been criticized on many levels.
There are two key problems which are in need of further There are two key problems which are in need of further consideration and these two problems lead to a third and consideration and these two problems lead to a third and fundamental flaw in the legal framework in this area. fundamental flaw in the legal framework in this area.
The first issueThe first issue is that there is no coherence in EU migration is that there is no coherence in EU migration policy generally and that even when considering only policy generally and that even when considering only those law and policy provisions relating to irregular those law and policy provisions relating to irregular migration directly, there cannot be said to be clear strategic migration directly, there cannot be said to be clear strategic aims and objectives which are mutually supportive. aims and objectives which are mutually supportive.
The EU immigration policies are contradictory policies, The EU immigration policies are contradictory policies, especially those of criminal justice, labour market, foreign especially those of criminal justice, labour market, foreign policy and development, and gender equality policies.’ policy and development, and gender equality policies.’
10. EU Legal Framework10. EU Legal FrameworkThe second problemThe second problem arising from the legal framework on irregular arising from the legal framework on irregular
migration is the continuing criminalization of migration and migration is the continuing criminalization of migration and migrants which fosters a culture of distrust between EU Member migrants which fosters a culture of distrust between EU Member States and migrants. ‘To a certain degree this culture of distrust States and migrants. ‘To a certain degree this culture of distrust has been generated and then reinforced by the developing EU has been generated and then reinforced by the developing EU migration law and policy, particularly in the adoption of measures migration law and policy, particularly in the adoption of measures that stigmatize migrants, in the absence of a more principled that stigmatize migrants, in the absence of a more principled approach based on detailed human rights guarantees.’ approach based on detailed human rights guarantees.’
Third and fundamental issueThird and fundamental issue is the absence of human rights is the absence of human rights consideration in the law and policy in this area. Human rights consideration in the law and policy in this area. Human rights considerations and protections are not mainstreamed throughout considerations and protections are not mainstreamed throughout and they can appear, at best, an afterthought in the legislation. and they can appear, at best, an afterthought in the legislation.
11. Human Rights 11. Human Rights Where are the human rights?Where are the human rights?
The lack of coherence taken together with the increasing The lack of coherence taken together with the increasing criminalization of migrants and migration mean that criminalization of migrants and migration mean that questions of human rights have been side-lined in the questions of human rights have been side-lined in the debate at policy level. In fact, it can be argued that human debate at policy level. In fact, it can be argued that human rights instruments side-line migrants in many ways. rights instruments side-line migrants in many ways.
Kengerlinsky wrote “A human being with his or her interests is Kengerlinsky wrote “A human being with his or her interests is central to the EU, and the Member States have a responsi-central to the EU, and the Member States have a responsi-bility to protect the human rights of all those within their bility to protect the human rights of all those within their territory and jurisdiction. There is an individual and collective territory and jurisdiction. There is an individual and collective duty of EU States to protect persons moving across borders duty of EU States to protect persons moving across borders and it is incumbent on them to act and co-operate to achieve and it is incumbent on them to act and co-operate to achieve this purpose”. this purpose”.
12. Return Directive 12. Return Directive The European Union does not seem to really want to The European Union does not seem to really want to
implement these protections towards irregular immigrants. implement these protections towards irregular immigrants.
A confirmation of these considerations, for instance, are some A confirmation of these considerations, for instance, are some provisions of the Directive 2008/115/EC, also called Return provisions of the Directive 2008/115/EC, also called Return Directive. A provision among all is that which seems not to Directive. A provision among all is that which seems not to consider the fundamental rights of foreigners subject to consider the fundamental rights of foreigners subject to expulsion: the Article 13, indeed, provides the opportunity expulsion: the Article 13, indeed, provides the opportunity for the stranger to obtain judicial suspension of the decision for the stranger to obtain judicial suspension of the decision to return, which is only considered as a possibility and not to return, which is only considered as a possibility and not as an automatic effect resulting to the proposition of the as an automatic effect resulting to the proposition of the appeal. appeal.
12. Return Directive12. Return Directive
The lack protection of human rights is also demonstrated by The lack protection of human rights is also demonstrated by the constant maintenance, in many aspects of the matter, the constant maintenance, in many aspects of the matter, of the domestic jurisdiction, which does not allow to the of the domestic jurisdiction, which does not allow to the European Union to have a social policy and legislation that European Union to have a social policy and legislation that is unique and responds to strict rules. is unique and responds to strict rules.
The EU continues to limit itself to sanction general principles The EU continues to limit itself to sanction general principles which, in most cases, are applied differently in most States. which, in most cases, are applied differently in most States. This manifests that the will does not want to really protect This manifests that the will does not want to really protect immigrants, especially the irregulars, thus demonstrating to immigrants, especially the irregulars, thus demonstrating to consider the illegal immigrants only in the sense of consider the illegal immigrants only in the sense of problems, revealing in part a culture of distrust towards that problems, revealing in part a culture of distrust towards that matter and leaving the solution of this phenomenon to the matter and leaving the solution of this phenomenon to the discretion of each Member Country. discretion of each Member Country.
12. Return Directive12. Return DirectiveHow to address the problem of a major and effective How to address the problem of a major and effective
protection of human rights of irregular immigrants? We protection of human rights of irregular immigrants? We have to highlight that some improvements have been have to highlight that some improvements have been introduced in the last years.introduced in the last years.
The Return Directive - although there are several provisions The Return Directive - although there are several provisions that are do not protect human rights, other provisions have that are do not protect human rights, other provisions have been included: the right of foreigners to receive free legal been included: the right of foreigners to receive free legal advice; the requirement to state the reasons in fact and in advice; the requirement to state the reasons in fact and in law of return decisions; the introduction of a ban on holding law of return decisions; the introduction of a ban on holding the migrant in prison throughout the process. There is the migrant in prison throughout the process. There is therefore a much clearer articulation that the migrant does therefore a much clearer articulation that the migrant does not have to be considered a criminal. not have to be considered a criminal.
12. Return Directive12. Return DirectiveIn regards to this Directive, throughout a communication on In regards to this Directive, throughout a communication on
the EU’s Return Policy adopted by the European the EU’s Return Policy adopted by the European Commission on 28 March 2014, which stressed the need Commission on 28 March 2014, which stressed the need for better practical implementation of the EU Return for better practical implementation of the EU Return Directive and of return policies in general, the EU highlights Directive and of return policies in general, the EU highlights that the full respect for fundamental rights has to be that the full respect for fundamental rights has to be ensured within return procedures and states the intention ensured within return procedures and states the intention of adopting, within one year, a “Return Handbook”, of adopting, within one year, a “Return Handbook”, containing common guidelines, best practices and containing common guidelines, best practices and recommendations to member states for carrying out recommendations to member states for carrying out returns in a manner consistent with relevant international returns in a manner consistent with relevant international standards, and in line with the safeguards established standards, and in line with the safeguards established within the Return Directive. within the Return Directive.
13. Protection of Human Rights of Irregular 13. Protection of Human Rights of Irregular Immigrants Immigrants European Parliament adopted the Regulation establishing ru-European Parliament adopted the Regulation establishing ru-
les of surveillance in FRONTEX through coordinated joint les of surveillance in FRONTEX through coordinated joint operation. The European Parliament Committee on Civil operation. The European Parliament Committee on Civil Liberties, Justice and Home Affairs on 20 February 2014 Liberties, Justice and Home Affairs on 20 February 2014 voted in support of the compromise text on the regulation. voted in support of the compromise text on the regulation. The rules required units participating in FRONTEX The rules required units participating in FRONTEX operations to ensure the operations to ensure the safety and human dignitysafety and human dignity of of intercepted or rescued persons including an obligation to intercepted or rescued persons including an obligation to identify vulnerable persons such as victims of trafficking identify vulnerable persons such as victims of trafficking and unaccompanied migrant children and provide them and unaccompanied migrant children and provide them with adequate assistance. with adequate assistance.
14. New EU Directive on Human Trafficking 14. New EU Directive on Human Trafficking
Some relevant improvements are also detectable in the Some relevant improvements are also detectable in the new new EU directive on human traffickingEU directive on human trafficking, implemented i, implemented in April n April 20132013. Some researchers have stressed that it is a much . Some researchers have stressed that it is a much more substantial document than its predecessor, reflecting more substantial document than its predecessor, reflecting the growing concern among Member States regarding the the growing concern among Member States regarding the development of the phenomenon of trafficking in human development of the phenomenon of trafficking in human beings. Indeed it takes an integrated, holistic, and human beings. Indeed it takes an integrated, holistic, and human rights approach to the issue, building on the pre-existing rights approach to the issue, building on the pre-existing legal frameworks provided by the UN, the International legal frameworks provided by the UN, the International Labour Organization (ILO), the Council of Europe, and the Labour Organization (ILO), the Council of Europe, and the EU Charter of Fundamental Rights. EU Charter of Fundamental Rights.
14. New EU Directive on Human Trafficking 14. New EU Directive on Human Trafficking
The new EU Directive referred to above is The new EU Directive referred to above is Directive Directive 2011/36/EU on Preventing and Combating Trafficking 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victimsin Human Beings and Protecting its Victims. The . The Directive replaces the Framework Decision discussed Directive replaces the Framework Decision discussed above and seems to take a different approach, focusing above and seems to take a different approach, focusing more on more on protecting victims and having more obvious protecting victims and having more obvious regard for Human Rightsregard for Human Rights. .
The Directive focus more on human rights than previous The Directive focus more on human rights than previous legislation in this area. legislation in this area. It explicitly refers to European It explicitly refers to European and International human rights’ instrumentsand International human rights’ instruments. It also . It also specifies some of the tools critical to the application of the specifies some of the tools critical to the application of the provisions and outlines of some measures to support the provisions and outlines of some measures to support the effectiveness of protection of the rights in question. effectiveness of protection of the rights in question.
14. New EU Directive on Human Trafficking14. New EU Directive on Human Trafficking
Directive adopts a more comprehensive approach, which is no Directive adopts a more comprehensive approach, which is no longer confined to the fight against organized crime but aimed longer confined to the fight against organized crime but aimed at ensuring greater protection of victims. This can be seen in at ensuring greater protection of victims. This can be seen in the title of the Directive itself but is made explicit in reference the title of the Directive itself but is made explicit in reference to “position of vulnerability” in Article 2 (2), and the explicit to “position of vulnerability” in Article 2 (2), and the explicit non-criminalization of the trafficked persons for any offences non-criminalization of the trafficked persons for any offences arising from having been trafficked. The conceptualization of arising from having been trafficked. The conceptualization of trafficking has been broadened to include activities into which trafficking has been broadened to include activities into which trafficked migrants might be forced on arrival in the host state trafficked migrants might be forced on arrival in the host state to engage in activities such as begging, shoplifting, drug to engage in activities such as begging, shoplifting, drug dealing or prostitution. A broadening of our understanding dealing or prostitution. A broadening of our understanding of trafficking and exploitation allows for a more holistic of trafficking and exploitation allows for a more holistic approach to dealing with the issues arising. approach to dealing with the issues arising.
15. Other Provisions on Human Rights 15. Other Provisions on Human Rights Other provisions are also to be welcomed. For example, Other provisions are also to be welcomed. For example,
judges have the power to use the means of the seizure, judges have the power to use the means of the seizure, confiscation of proceeds of crime to fund assistance and confiscation of proceeds of crime to fund assistance and protection of victims; and the Directive promotes civil protection of victims; and the Directive promotes civil society organizations, including NGOs: Member States society organizations, including NGOs: Member States must work closely with them, especially with regards to must work closely with them, especially with regards to policy initiatives, information campaigns and awareness policy initiatives, information campaigns and awareness programs, research and education and training, and programs, research and education and training, and verification and evaluation of the impact of antitrafficking verification and evaluation of the impact of antitrafficking measures. measures.
However, much of the provisions may be very difficult to However, much of the provisions may be very difficult to enforce in practice because of the victims’ vulnerable enforce in practice because of the victims’ vulnerable situation. situation.
15. Other Provisions on Human Rights15. Other Provisions on Human RightsObviously, it is necessary to see how this Directive will be Obviously, it is necessary to see how this Directive will be
implemented and applied by each individual Member State, implemented and applied by each individual Member State, whereby the majority seem to have had difficulty complying whereby the majority seem to have had difficulty complying with European standards in this area. While progress has with European standards in this area. While progress has been made, there are still underdeveloped aspects and been made, there are still underdeveloped aspects and much will depend on implementation and the willingness of much will depend on implementation and the willingness of Member States to cooperate with each other. Member States to cooperate with each other.
Another important point is the increase of irregular entrance Another important point is the increase of irregular entrance of immigrants who reach the coasts of South European of immigrants who reach the coasts of South European Member State to enter in EU, by the Mediterranean Sea. Member State to enter in EU, by the Mediterranean Sea. The irregular immigrants arrive by boats guided by The irregular immigrants arrive by boats guided by traffickers and a lot of them lost their lives at sea. traffickers and a lot of them lost their lives at sea.
16. More Human Rights 16. More Human Rights European migration policy should place human rights at the European migration policy should place human rights at the
centre of its considerationscentre of its considerations. It should build a cohe-rent . It should build a cohe-rent framework that governs migration at all levels and in all contexts framework that governs migration at all levels and in all contexts and does not privilege certain migrants over others. Beginning and does not privilege certain migrants over others. Beginning with human rights as the basis of such a policy would value all with human rights as the basis of such a policy would value all migrants and the potential contributi-on they can make to migrants and the potential contributi-on they can make to Member States and the EU overall. It would encourage Member Member States and the EU overall. It would encourage Member States to treat all migrants including irregular ones with far more States to treat all migrants including irregular ones with far more respect than is currently shown and would help ensure that respect than is currently shown and would help ensure that processes for regulating borders and enforcing that regulation processes for regulating borders and enforcing that regulation are set out in a way which preserves human dignity. This are set out in a way which preserves human dignity. This approach requires a clearer and systematic European legal approach requires a clearer and systematic European legal framework on the matter of migration generally. framework on the matter of migration generally.
16. More Human Rights16. More Human RightsRegarding some of the current Regarding some of the current EU laws and policy in EU laws and policy in
irregular migrationirregular migration, there is the lack of a consistent , there is the lack of a consistent framework in this area. Continuing criminalization of framework in this area. Continuing criminalization of migration leads to irregular migrants being left in difficult migration leads to irregular migrants being left in difficult situations without much human rights based protection. situations without much human rights based protection. Recent legal changes have improved matters a little, by Recent legal changes have improved matters a little, by recognizing the importance of migrants’ basic human recognizing the importance of migrants’ basic human rights particularly in relation to trafficking. However, rights particularly in relation to trafficking. However, conclusion is that EU is not there yet and that in order to conclusion is that EU is not there yet and that in order to create an environment where the potential of migrants can create an environment where the potential of migrants can be realized for their benefit and the benefit of their host be realized for their benefit and the benefit of their host countries, we need to reconceptualise EU level migration countries, we need to reconceptualise EU level migration policy based on a human rights framework.policy based on a human rights framework.
